PUBLIC WATCHDOGS, a California 501(c)(3) corporation, Plaintiff-Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY; SAN DIEGO GAS & ELECTRIC COMPANY; SEMPRA ENERGY; HOLTEC INTERNATIONAL; U.S. NUCLEAR REGULATORY COMMISSION, Defendants-Appellees.
No. 19-56531
United States Court of Appeals for the Ninth Circuit
Filed December 29, 2020
D.C. No. 3:19-cv-01635-JLS-MSB
Appeal from the United States District Court for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted June 3, 2020
Pasadena, California
Opinion by Judge N. Randy Smith
SUMMARY**
Hobbs Act
The panel affirmed the district court‘s dismissal of a complaint for lack of subject-matter jurisdiction under the Administrative Orders Review Act, frequently referred to as the Hobbs Act.
Under the Hobbs Act, courts of appeals have exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of all final orders of the United States Nuclear Regulatory Commission made reviewable by
The panel held that the Hobbs Act must be interpreted broadly to encompass not only all final NRC actions in licensing proceedings, but also all decisions that are preliminary, ancillary, or incidental to those licensing proceedings. Because Public Watchdogs‘s complaint challenged final orders of the NRC related to licensing, the NRC‘s enforcement decisions related to NRC licenses and certifications, and conduct licensed or certified by the NRC,
Specifically, the panel held that the district court correctly determined that Public Watchdogs‘s claim under the Administrative Procedure Act (“APA“) directly challenged the grant of the 2015 License Amendments and the Certificate of Compliance for the Holtec System. The panel held that the 2015 License Amendments and the Certificate of Compliance were final orders of the NRC and related to the grant or amendment of a license or the issuance or modification of rules and regulations dealing with the activities of licensees. Accordingly, under the Hobbs Act, the court of appeals had exclusive jurisdiction to enjoin, set aside, suspend or to determine the validity of those orders. The district court therefore correctly found that it lacked subject-matter jurisdiction over Public Watchdogs‘s claim brought under the APA against the NRC to the extent it challenged the 2015 License Amendments and the Certificate of Compliance for the Holtec System.
The panel rejected Public Watchdog‘s argument that the district court had subject-matter jurisdiction over its APA claim because other agency actions, including a decision exempting Holtec from certain pre-approval requirements for canister design changes, fell outside the scope of the Hobbs Act. The panel held that even assuming Public Watchdogs‘s APA claim did not challenge the grant of the 2015 License Amendments or the Certificate of Compliance for the Holtec System, Public Watchdogs‘s APA claim related to other agency actions still fell within the scope of the Hobbs Act because it challenged the NRC‘s enforcement “decisions not to suspend” a license or licensed operations and sought relief
The panel held that Public Watchdogs‘s claims against private defendants, Holtec International and the utility defendants, fell within the scope of the Hobbs Act. The panel held that despite Public Watchdogs‘s artful pleading, it was clear its claims against these private defendants were an attempt to challenge the 2015 License Amendments, the Certificate of Compliance for the Holtec System, and actions taken by the licensees under the authority of both of those final NRC orders. Public Watchdogs, therefore, could not avoid the Hobbs Act‘s exclusive avenue of judicial review by pleading its challenge to the 2015 License Amendments and the Certificate of Compliance for the Holtec System as a public liability action under the Price-Anderson Act, or as a public nuisance claim or a strict products liability claim under California law.
COUNSEL
Eric J. Beste (argued) and Charles G. La Bella, Barnes & Thornburg LLP, San Diego, California, for Plaintiff-Appellant.
Justin D. Heminger (argued), Senior Litigation Counsel; Eric Grant, Deputy Assistant Attorney General; Jeffrey Bossert Clark, Assistant Attorney General; Andrew P. Averbach, Solicitor, and James E. Adler, Senior Attorney, U.S. Nuclear Regulatory Commission; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellant U.S. Nuclear Regulatory Commission.
OPINION
N.R. SMITH, Circuit Judge:
Under the Administrative Orders Review Act—frequently referred to as the Hobbs Act—courts of appeals have “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of... all final orders of the [United States Nuclear Regulatory Commission (“NRC“)] made reviewable by
Plaintiff-Appellant Public Watchdogs, a non-profit corporation advocating for public safety, appeals the district court‘s dismissal with prejudice of its first amended
I. BACKGROUND
A. The NRC Regulates the Construction and Operation of Nuclear Power Plants and Spent Fuel Storage Facilities, and the Storage of Spent Nuclear Fuel
The NRC is an independent regulatory commission established by Congress in the Energy Reorganization Act of 1974 (“ERA“). See
If a person‘s interests will be affected by an NRC proceeding “for the granting, suspending, revoking, or amending of any license or construction permit” or by a “proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees,” then that person may request a hearing before the NRC.
Aside from the NRC‘s licensing and rule-making responsibilities, the agency is also responsible for: (1) “conducting criminal, civil, and administrative investigations of alleged violations by NRC licensees“; (2) “inspecting NRC licensees to ensure adequate
The NRC also regulates the storage of spent nuclear fuel (“SNF“), which is the radioactive byproduct that results from the “burning” of nuclear fuel (i.e., uranium fuel rods bundled into fuel assemblies) in nuclear reactors. See U.S. Nuclear Regulatory Comm‘n, NUREG/BR-0528, Safety of Spent Fuel Storage at 1 (April 2017) [hereinafter NRC Spent Fuel Storage]; see generally
The NRC regulates the on-site storage of SNF in one of two ways: (1) it grants a site-specific license based on a safety review of the technical requirements and operating conditions for the specific ISFSI; or (2) it issues a general license that authorizes the licensee to store SNF in dry storage casks certified by the NRC for the storage of SNF. See id.; see also
Prior to the NRC‘s approval of a cask for storage of SNF in a Certificate of Compliance, the agency subjects the storage system to a rigorous review process, including public scrutiny through notice-and-comment rule making. See, e.g.,
Thus, under the terms of its operating license and the relevant Certificate of Compliance, an NRC nuclear power reactor licensee may store SNF on site in an ISFSI in a dry storage cask certified by the NRC. See
B. The NRC‘s Grant of a License Amendment to the SONGS Licensees and Certification of Holtec International‘s HI-STORM UMAX Canister Storage System for the Storage of Spent Nuclear Fuel at SONGS
In August 1963, Congress enacted Public Law 88-82 that authorized the “construction, operation, maintenance, and use” of a nuclear power plant on the Camp Pendleton military base in Southern California. Act of July 30, 1963, Pub. L. No. 88-83, 77 Stat. 115. Thereafter, three nuclear electric generating units were constructed and operated at San Onofre Nuclear Generating Station (“SONGS“) pursuant to permits and licenses issued by the NRC. The NRC issued three separate Facility Operating Licenses—one for each unit—to Southern California Edison Company (“Edison“) and San
The first nuclear generating unit operated from 1968 until 1992. The second and third units operated from 1983 and 1984, respectively, until both units ceased operation and began the decommission process in 2013. In 2015, after the Utility Defendants ceased operation of the second and third nuclear generating units, the NRC approved changes to the Facility Operating Licenses for Units 2 and 3 by amending the license agreements (“2015 License Amendments“). The 2015 License Amendments require the Utility Defendants to “[t]ake actions necessary to decommission the plant and continue to maintain the facility, including the storage, control and maintenance of the spent fuel, in a safe condition.”
The NRC‘s review of the 2015 License Amendments was open to public comment and intervention. See Biweekly Notice, Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 79 Fed. Reg. 55,507, 55,508, 55,513-14 (Sept. 16, 2014) (soliciting comments on the NRC‘s determination that the 2015 License Amendments involved “no significant hazards consideration” and informing the public they could request a hearing before the NRC). However, the NRC received no comments. See Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No
Although the SNF at SONGS had historically been stored in wet-storage pools, the Utility Defendants’ decommissioning plan required the SNF to be buried in dry casks in the SONGS ISFSI. The Utility Defendants elected to use Holtec International‘s (“Holtec“) HI-STORM UMAX Canister Storage System (“Holtec System“), a canister-based SNF storage system that had been approved for the storage of SNF by the NRC in a Certificate of Compliance. The Holtec System consists of three components: “(1) interchangeable multi-purpose canisters... , which contain the fuel; (2) underground Vertical Ventilated Modules... , which contain[] the [canisters] during storage; and (3) a transfer cask... , which contains the [canisters] during loading, unloading and transfer operations.”
Like the 2015 License Amendments, the public had the opportunity to provide comments concerning the NRC‘s evaluation and approval of the Holtec System. See List of Approved Spent Fuel Storage Casks: Holtec International HI-STORM Underground Maximum Capacity Canister Storage System, Certificate of Compliance No. 1040, 80 Fed. Reg. 12,073, 12,074-76 (Mar. 6, 2015) (codified at
The Preliminary Safety Evaluation Report, issued in connection with the Certificate of Compliance for the Holtec System, documented the NRC‘s review and evaluation of the Holtec System. Therein, the NRC considered the Holtec System‘s shielding and radiation protection; its susceptibility to chemical, galvanic, or other reactions; and its potential performance in the event of an accident. Ultimately, the NRC concluded that the activities authorized by the Holtec System Certificate of Compliance could “be conducted without endangering the health and safety of the public” and could “be conducted in compliance with the applicable regulations of [
In response to public comments, the NRC reiterated that “the design [of the Holtec System] is robust, and contains numbers of layers of acceptable confinement systems in compliance with [
On August 29, 2019, Public Watchdogs brought suit against Edison, SDG&E, Sempra, Holtec, and the NRC (collectively, “Defendants“), seeking to enjoin Defendants’ allegedly negligent decommissioning activities at SONGS. In its First Amended Complaint (“FAC“), Public Watchdogs challenges the NRC‘s selection of Holtec as the supplier of the SNF storage system and the NRC‘s grant of the 2015 License Amendments. For example, Public Watchdogs alleges that: (1) the NRC‘s selection of Holtec as the supplier of the SNF storage system was done recklessly or in conscious disregard for the safety and competency issues that have surrounded Holtec for years; and (2) the NRC‘s grant of the 2015 License Amendments was arbitrary, capricious, or otherwise unlawful.
Public Watchdogs‘s allegations also challenge the Holtec SNF canisters that were certified for the storage of SNF by the NRC in a Certificate of Compliance. In fact, Public Watchdogs alleges that: (1) the design of the Holtec SNF canisters “deviates from the acceptable minimum safety thresholds required for the design and manufacture of nuclear waste storage containers“; and (2) Holtec made changes to the design of the Holtec SNF canisters after the NRC‘s certification of the Holtec System without the authorization of the NRC and those design changes rendered several of the Holtec SNF canisters defective.2 Despite the NRC learning of the allegedly defective Holtec SNF canisters, Public Watchdogs argues the NRC “failed to act” and permitted the
Public Watchdogs‘s FAC also complains of the Utility Defendants’ allegedly negligent decommissioning conduct, including allegations that: (1) the Utility Defendants negligently “gouged” a number of Holtec SNF canisters as they buried them in the SONGS ISFSI; and (2) many Holtec SNF canisters were negligently scratched during transportation to the SONGS ISFSI. Public Watchdogs‘s allegations related to decommissioning conduct also highlight two instances (one in July 2018 and one in August 2018) where the Utility Defendants mishandled loaded Holtec SNF canisters as they were transferred into the SONGS ISFSI and subsequently failed to report those incidents to the NRC.
In response to the August incident where the Utility Defendants mishandled a loaded Holtec SNF canister, the NRC issued an Inspection Charter for SONGS. The scope of the special inspection sought to evaluate, inter alia, the adequacy of the Utility Defendants’ loading procedures, corrective actions, and reporting procedures. In the Inspection Charter, the NRC noted that the Utility Defendants voluntarily committed to not resuming their SNF transfer operations until the NRC‘s inspection and review was complete. Public Watchdogs argues, however, that the NRC should have ordered the Utility Defendants to cease SNF transfer operations.
Public Watchdogs also points to a number of NRC issued Inspection Reports that identified various violations related to the Utility Defendants’ and Holtec‘s decommissioning conduct at SONGS. For example, in March 2019, the NRC issued a Notice of Violation and NRC Special Inspection
Finally, on July 15, 2019, the Utility Defendants informed the public that they were resuming the movement of SNF from wet storage to the Holtec SNF canisters and were resuming the burial of the canisters in the SONGS ISFSI.
D. Procedural History
Based on the above allegations, Public Watchdogs asserted: (1) the NRC violated the Administrative Procedure Act,
Defendants opposed Public Watchdogs‘s request for a temporary restraining order and moved to dismiss the FAC for a lack of subject-matter jurisdiction and for failure to state a claim pursuant to
Public Watchdogs‘s allegations supporting its petition with the NRC pursuant to
While Defendants’ motions to dismiss in the instant suit and the
On December 3, 2019, the district court granted Defendants’ motions to dismiss, denied Public Watchdogs‘s motion for preliminary injunction, and dismissed Public Watchdogs‘s FAC with prejudice. The district court held Public Watchdogs had standing to pursue injunctive relief against the Private Defendants, reasoning the allegations in the FAC were sufficient to allege Article III standing and satisfy the injury-in-fact requirement, because the allegations tended to show “there is a ‘credible threat’ that a probabilistic harm will materialize.”3 Pub. Watchdogs v. S. Cal. Edison Co., No. 19-CV-1635 JLS (MSB), 2019 WL 6497886, at *7 (S.D. Cal. Dec. 3, 2019) (unpublished) (quoting Nat. Res.
The district court next concluded that all of Public Watchdogs‘s claims challenged NRC decisions that fell within the scope of the Hobbs Act, thereby depriving it of subject-matter jurisdiction over the action. See id. at *8-12. With respect to Public Watchdogs‘s claim against the NRC, the district court found it lacked subject-matter jurisdiction: (1) because the claim challenged the grant or amendment of 2015 License Amendments and the Certificate of Compliance for the Holtec System (both final orders of the NRC relating to the grant or amendment of a license for the purpose of the Hobbs Act); and (2) because the claim‘s challenge to “the Other Agency Actions” touched upon “issues preliminary or ancillary to” the 2015 License Amendments and the Certificate of Compliance for the Holtec System. Id. at *9-10.
Similarly, with respect to Public Watchdogs‘s various claims against the Private Defendants, the district court determined it lacked subject-matter jurisdiction, because all of Public Watchdogs‘s claims “trace[d] back to actions that were taken pursuant to or that were incidental to the NRC‘s issuance of the ... 2015 License Amendment or the [C]ertificate of [C]ompliance for the Holtec canisters, actions that must be challenged before the Ninth Circuit pursuant to the Hobbs Act.” Id. at *11.
After concluding it lacked subject-matter jurisdiction over the action, the district court proceeded to grant the Private Defendants’ motions to dismiss for failure to state a claim, finding all of Public Watchdogs‘s claims against the Private Defendants were preempted or failed to allege facts sufficient
After Public Watchdogs appealed the district court‘s order dismissing the instant action, the NRC denied Public Watchdogs‘s
II. STANDARD OF REVIEW
“We review de novo the district court‘s determination that it lacked subject matter jurisdiction because of the Hobbs Act.” Carpenter v. Dep‘t of Transp., 13 F.3d 313, 314 (9th Cir. 1994).
We must first determine whether the district court correctly held that it lacked subject-matter jurisdiction over Public Watchdogs‘s suit against Defendants. To answer this question, we must determine the appropriate scope of the Hobbs Act and then consider whether Public Watchdogs‘s claims challenged decisions that fall within the scope of the Hobbs Act.
A. The Scope of the Hobbs Act Encompasses All Final Orders of the NRC Related to Licensing and All Decisions of the NRC Preliminary, Ancillary, or Incidental Thereto
“[T]he Administrative Orders Review Act,
The district court held that the Hobbs Act must be read broadly to encompass issues preliminary or ancillary to licensing proceedings. Public Watchdogs, however, argues that the Hobbs Act should be construed narrowly to exclude from district court review only actions where the NRC is called upon to grant, suspend, revoke, or amend a license. We disagree; the Hobbs Act must not be construed so narrowly.
In Lorion, the Supreme Court addressed whether the NRC‘s denial of a
The Court bolstered its conclusion by examining the irrational consequences that would flow from the adoption of the contrary rule announced by the lower court—i.e., that
Relying on Lorion, we held in General Atomics that “the Hobbs Act is to be read broadly to encompass all final [NRC] decisions that are preliminary or incidental to licensing.” 75 F.3d at 539 (emphasis added). We further explained that
B. Public Watchdogs‘s Claim Challenged Decisions that Fall Within the Scope of the Hobbs Act
Having determined the appropriate scope of the Hobbs Act, we must now determine whether Public Watchdogs‘s
i. Public Watchdogs‘s Claim Against the NRC Challenges NRC Licensing Decisions or Decisions Ancillary or Incidental to Licensing Decisions
Public Watchdogs asserted a single cause of action against the NRC for the violation of the APA,
On its face, Public Watchdogs‘s FAC challenges the grant of the 2015 License Amendments and the Certificate of Compliance for the Holtec System—both final orders of the NRC for the purposes of the Hobbs Act. See
Accordingly, because the 2015 License Amendments and the Certificate of Compliance for the Holtec System are final orders of the NRC and relate to the grant or amendment of a
Next, Public Watchdogs argues that the district court had subject-matter jurisdiction over its APA claim, because the following five “Other Agency Actions” fall outside of the scope of the Hobbs Act: (1) the NRC‘s exemption of Holtec from the requirement it receive pre-approval of its design change to the Holtec SNF canisters; (2) the NRC‘s decision to relieve Holtec from the responsibility of complying with the Certificate of Compliance for the Holtec SNF canisters; (3) the NRC‘s exemption of the Utility Defendants from the requirement they file an event report after the mishandling incident in July 2018; (4) the NRC‘s decision permitting Holtec to continue moving SNF from wet to dry storage in 2019; and (5) the NRC‘s decision permitting the Utility Defendants to resume transferring SNF from wet to dry storage, despite the two safety violations that occurred in 2018.
An “exemption” is a formal NRC action that relieves an NRC licensee of the duty to comply with a certain regulatory requirement. See id. at 177–78 (explaining “NRC regulations also permit the agency to grant ‘exemptions from the requirements of regulations,’ as long as” certain requirements are met (quoting
Here, none of the NRC actions identified by Public Watchdogs involve the grant of an “exemption” under an NRC regulation. For instance, although Public Watchdogs argues the NRC “exempted” Holtec from the requirement that it obtain pre-approval from the NRC for its purported design change to the Holtec SNF canisters, the identified allegations
Similarly, despite arguing that the NRC exempted Holtec from complying with the Certificate of Compliance for the Holtec System, Public Watchdogs fails to identify any “exemption” granted by the NRC that excused Holtec from complying with the Certificate of Compliance. Public Watchdogs‘s complaint at best contains a generic and conclusory allegation that the NRC has periodically “accept[ed] amendments to certificates of compliance and grant[ed] exemptions from other statutory and regulatory requirements.” Even this allegation does not take issue with an alleged exemption related to a Certificate of Compliance, but instead challenges the NRC‘s alleged grant of exemptions from “other statutory and regulatory requirements.” In response, Public Watchdogs points to allegations that, after learning the Holtec SNF canisters had been scratched, gouged, or dented, the NRC failed to “independently evaluate[ ] the increased risks posed by this damage to the canisters.” But, again, these allegations do not describe the NRC‘s grant of an exemption.
Public Watchdogs finally implies that the NRC “exempted” the Utility Defendants from the requirement that they file an “Event Notification Report” after the Utility Defendants mishandled a fully-loaded Holtec SNF canister in July of 2018. Again, however, these allegations do not describe the NRC‘s grant of an exemption relieving the Utility Defendants of the requirement to file an “Event Notification Report.” Instead, Public Watchdogs appears to
In sum, none of the complained-of “Other Agency Actions” involve the issuance of an exemption by the NRC, but instead focus on either the NRC‘s decisions not to take enforcement action against Holtec and the Utility Defendants or the sufficiency of the NRC‘s selected enforcement action. Thus, Brodsky is not implicated here.
Public Watchdogs also argues the five “Other Agency Actions” fall outside of the scope of the Hobbs Act, because they are not actions for the “granting, suspending, revoking, or amending of any license” and were taken after the grant of the 2015 License Amendments and after the issuance of the Certificate of Compliance for the Holtec System. This argument is not persuasive, because the Hobbs Act not only encompasses all final NRC actions in licensing proceedings but also all issues that are preliminary, ancillary, or incidental to those licensing proceedings. See Lorion, 470 U.S. at 737, 743; Gen. Atomics, 75 F.3d at 539. As discussed above, Public Watchdogs‘s APA claim is properly viewed as a challenge to the grant of the 2015 License Amendments and the Certificate of Compliance for the Holtec System over
ii. Even if Public Watchdogs‘s APA Claim Did Not Challenge the 2015 License Amendments or the Certificate of Compliance for the Holtec System, the Claim Still Falls Within the Scope of the Hobbs Act, Because It Seeks Relief that Should Have First Been (and Later Was) Pursued Before the NRC in a § 2.206 Petition
In Lorion, the Supreme Court held that
The five “Other Agency Actions” identified by Public Watchdogs all focus on either the NRC‘s decisions not to take enforcement action based on the alleged misconduct related to the 2015 License Amendments and Certificate of Compliance for the Holtec System or the NRC‘s failure to take (in Public Watchdogs‘s opinion) the appropriate enforcement action related to those orders. In briefing, Public Watchdogs makes plain the appropriate enforcement action that it believes the NRC failed to take was the suspension of the Private Defendants’ decommissioning activities carried out under the 2015 License Amendments and the Certificate of Compliance for the Holtec System. Indeed, Public Watchdogs states that “any fair reading” of its APA claim shows it was a challenge to the NRC‘s failure to “halt” the Private Defendants’ decommissioning activities. In that sense, like the denial of a
Indeed, if Public Watchdogs wanted the NRC to take additional enforcement action related to the alleged
In fact, after Public Watchdogs filed its FAC, it chose to follow the path outlined above by submitting a
Public Watchdogs‘s decision to file a
Finally, basic principles of administrative law also support our decision to allow the NRC to first address Public Watchdogs‘s
iii. Public Watchdogs‘s Claims Against Holtec and the Utility Defendants Challenge NRC Licensing Decisions or Decisions Ancillary or Incidental Thereto, and Challenge Conduct That Also Forms the Basis of Its § 2.206 Petition to the NRC
We must also determine whether Public Watchdogs‘s claims against the Private Defendants12 fall within the scope of the Hobbs Act. To do this, we must once again ascertain whether Public Watchdogs‘s claims challenge final NRC orders in licensing proceedings or challenge decisions that are preliminary, ancillary, or incidental to those licensing proceedings. See Lorion, 470 U.S. at 737, 743; Gen. Atomics, 75 F.3d at 539.
Public Watchdogs asserted three causes of action against the Private Defendants: (1) a public liability action under the Price-Anderson Act; (2) a public nuisance claim under
In the FAC, Public Watchdogs alleges the NRC improperly granted the Utility Defendants’ request for a license amendment that permitted them to decommission SONGS. Public Watchdogs further alleges that the NRC selected Holtec as the supplier of the SNF containment system with reckless disregard for the safety and competence issues surrounding Holtec. Public Watchdogs‘s FAC also takes aim at the Holtec SNF canisters, alleging: (1) they do not comply with acceptable minimum safety requirements for the design and manufacture of SNF storage containers; and (2) they are defective as a result of a design change made by Holtec without the NRC‘s approval. Additionally, Public Watchdogs complains of the Utility Defendants’ allegedly negligent decommissioning conduct, including using less personnel than necessary to ensure that Holtec SNF canisters are safely loaded into the SONGS ISFSI, scratching or gouging several Holtec SNF canisters prior to burying them at SONGS, and mishandling two loaded Holtec SNF canisters as they were loaded into the SONGS ISFSI.
Although Public Watchdogs frames its claims against the Private Defendants as a challenge to private entities’ alleged mishandling of nuclear waste, it alleges the 2015 License Amendments (which permits the storage of SNF at SONGS in the storage systems certified by the NRC) were improperly granted and the Holtec SNF canisters (which were certified for the storage of SNF at SONGS by the NRC in a Certificate of Compliance) do not comply with minimum safety requirements for SNF storage containers and are defective. Thus, it is clear from the allegations in the FAC that Public Watchdogs‘s claims against the Private Defendants are properly viewed, in part, as a veiled challenge to the 2015 License Amendments and the Certificate of Compliance for the Holtec System.
We have previously rejected litigants’ attempts to disguise their claims to avoid an exclusive avenue of judicial review selected by Congress. For example, in American Bird Conservancy v. FCC, 545 F.3d 1190, 1195 (9th Cir. 2008),
In reaching this decision, we relied on our earlier decision in California Save Our Streams Council, Inc., where the Federal Energy Regulatory Commission (“FERC“) granted Alternative Energy Resources a license to construct and
On appeal, we held that the Federal Power Act “vest[ed] sole jurisdiction over questions arising under the FERC licenses in the [c]ourts of [a]ppeals.” Id. at 911. Undeterred, the plaintiffs argued that the Federal Power Act‘s exclusive judicial review provisions were simply not applicable, because: (1) “their suit was filed against the Forest Service and arose under the provisions of NEPA and AIRFA“; and (2) “they [were] not attacking the licensing decision made by FERC but instead [were] seeking review only of the Forest Service‘s failure to follow the procedural and substantive steps outlined in statutes outside the purview of power and energy regulation.” Id. We rejected this argument, reasoning that,
although [the plaintiffs] seek to characterize
the proceedings as an attack on the Forest Service‘s actions, it is clear that the suit is an attempt to restrain the licensing procedures authorized by FERC. The ... conditions imposed by the [Forest] Service have no significance outside the licensing process, and we do not believe that the jurisdictional remedy prescribed by Congress hangs on the ingenuity of the complaint. ... Thus, even if they attempt to style [their complaint] as an independent claim against the Forest Service, the practical effect of the action in district court is an assault on an important ingredient of the FERC license.
Id. at 912. Ultimately, we agreed with the district court that it lacked subject-matter jurisdiction over the dispute. Id.
Despite Public Watchdogs‘s artful pleading, it is clear its claims against the Private Defendants are an attempt to challenge the 2015 License Amendments, the Certificate of Compliance for the Holtec System, and actions taken by the licensees under the authority of both of those final NRC orders. See id.; Am. Bird Conservancy, 545 F.3d at 1193–95. Thus, like the plaintiffs in American Bird Conservancy and California Save Our Streams Council, Inc., Public Watchdogs cannot avoid the Hobbs Act‘s exclusive avenue of judicial review by artfully pleading its challenge to the 2015 License Amendments and the Certificate of Compliance for the Holtec System as a Price-Anderson, public nuisance, or strict products liability claim.
Moreover, to the extent Public Watchdogs‘s claims against the Private Defendants also challenge the Private Defendants’ conduct that is expressly licensed, certified, and
Our conclusion that Public Watchdogs‘s claims against the Private Defendants fall within the scope of the Hobbs Act is, again, bolstered by Public Watchdogs‘s decisions to file a
Therefore, we hold that the district court correctly found it lacked jurisdiction over Public Watchdogs‘s claims against the Private Defendants, because they challenged NRC licensing orders or NRC decisions that were ancillary or incidental to NRC licensing decisions.
Because Public Watchdogs‘s FAC challenged NRC licensing orders or NRC decisions that were ancillary or incidental to NRC licensing decisions, the district court correctly determined that it did not have subject-matter jurisdiction under the Hobbs Act.13 Accordingly, the district court‘s dismissal of Public Watchdogs‘s FAC with prejudice is AFFIRMED.